Locked out without a Key: How the Eighth Circuit Wielded a Pro-Labor Statute as a Sword against Labor

Cornell Law Review Volume 99 Issue 4 May 2014 Article 6 Locked out without a Key: How the Eighth Circuit Wielded a Pro-Labor Statute as a Sword against Labor Matthew Tymann Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Matthew Tymann, Locked out without a Key: How the Eighth Circuit Wielded a Pro-Labor Statute as a Sword against Labor, 99 Cornell L. Rev. 953 (2014) Available at: http://scholarship.law.cornell.edu/clr/vol99/iss4/6 This Note is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact jmp8@cornell.edu.

NOTE LOCKED OUT WITHOUT A KEY: HOW THE EIGHTH CIRCUIT WIELDED A PRO-LABOR STATUTE AS A SWORD AGAINST LABOR Matthew Tymann INTRODUCTION... 953 I. BACKGROUND... 955 A. The 2011 NFL Lockout: Procedural History... 955 B. The Norris-LaGuardia Act... 957 II. THE BRADY DECISION... 958 A. The Opinion... 958 B. Brady Did Not Comport with Precedent or Legislative History... 959 1. Legislative History... 960 2. Cases Interpreting Relevant Portions of the Norris-LaGuardia Act... 964 III. HOW WILL BRADY AFFECT FUTURE LABOR DISPUTES?... 971 IV. WHAT SHOULD BE DONE?... 976 CONCLUSION... 978 INTRODUCTION The Norris-LaGuardia Act of 1932 1 restricted the jurisdiction of federal courts to enjoin particular work stoppages in cases involving or growing out of a labor dispute. 2 For many years, the Act has been universally understood to prevent federal judges from issuing injunctions against employee-initiated strikes. 3 The Supreme Court and many other sources, including the Act s legislative history, have made B.A., Georgetown University, 2008; J.D., Cornell Law School, 2014; Articles Editor, Cornell Law Review, Volume 99. My most important acknowledgment goes to my parents, who deserve more credit than can be easily articulated in one sentence. Beyond that, I would like to thank Nadia Chernyak and Brendan Venter for their consistent support throughout my time in law school as well as before and (I would anticipate) after. Thanks also to everyone on the Cornell Law Review who helped render this Note publishable, especially Joshua Brooks, Minsuk Han, Stephanie Mark, Conor McCormick, and Derek Stueben. Finally, thank you to Professor Angela Cornell for assigning the paper that later turned into this Note. 1 29 U.S.C. 101 115 (2012). 2 29 U.S.C. 101. 3 See, e.g., Milk Wagon Drivers Union, Local No. 753 v. Lake Valley Farm Prods., Inc., 311 U.S. 91, 99 100 (1940). 953

954 CORNELL LAW REVIEW [Vol. 99:953 clear that the basic purpose of the Act was to protect organized labor from the stifling power of judicial injunctions. 4 However, the Eighth Circuit in Brady v. NFL 5 arguably added a new layer to the Act s ban on injunctions when it construed the Act as also barring federal courts from enjoining employer-initiated work stoppages (commonly known as lockouts). 6 Given the recent increase in employer-initiated lockouts, 7 the Brady decision could have wide-ranging effects that may not be easy to foresee. The decision is also not without its detractors. Judge Kermit Bye, the dissenter of the three circuit judges in Brady, 8 portrayed the majority as drastically breaking with federal precedent. 9 The viability of his argument, to be explored below, leaves open the possibility that other federal circuit courts could choose to limit the Act s injunction provision to cases involving employee-initiated strikes, thereby contravening Brady. This could lead to a circuit split and leaves this area of law relatively unsettled. In short, this Note will address (1) whether Brady comports with precedent, (2) the likelihood of an impending circuit split on the issue, and (3) the ramifications the decision could have on future labor disputes both in professional sports and more generally. Part I of the Note will provide some essential background information on the topic, both about the 2011 NFL lockout (and the litigation arising out of that dispute) and the Norris-LaGuardia Act. This should brief the reader on both the factual and legal context in which the Brady case arose. Part II will proceed with a close examination of past Norris- LaGuardia cases to determine the degree to which the Brady court stayed true to precedent. This Part concludes that the Brady court broke new ground in holding that the Norris-LaGuardia Act prevents federal courts from enjoining employer-initiated lockouts. 10 In addition, this Part will consider the legislative history of the Act 11 and ultimately determine that the Brady court strayed far from the intended goals of the Congress that enacted this statute. 4 See United States v. Hutcheson, 312 U.S. 219, 235 36 (1941); H.R. REP. NO. 72-669, at 3 (1932). 5 644 F.3d 661 (8th Cir. 2011). 6 For more on lockouts, see generally 2 THE DEVELOPING LABOR LAW: THE BOARD, THE COURTS, AND THE NATIONAL LABOR RELATIONS ACT 1732 71 (John E. Higgins, Jr. et al. eds., 6th ed. 2012) [hereinafter DEVELOPING LABOR LAW]. For the seminal case establishing the legality of lockouts, see Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 309 10 (1965). 7 See Steven Greenhouse, More Lockouts as Companies Battle Unions, N.Y. TIMES, Jan. 23, 2012, at A1. 8 644 F.3d at 682 (Bye, J., dissenting). 9 Id. at 688 90. 10 See id. at 680 81(majority opinion) ( [W]e conclude that 4(a) of the Norris- LaGuardia Act deprives a federal court of power to issue an injunction prohibiting a party to a labor dispute from implementing a lockout of its employees. ). 11 Particularly H.R. REP. NO. 72-669, at 3 (1932).

2014] LOCKED OUT WITHOUT A KEY 955 Part III of this Note will then turn to the future and consider the effect the Brady decision could have on future labor disputes. Part III points out that, according to a Bloomberg BNA report, the number of employer-initiated lockouts has seen a sharp increase of late. 12 Given this empirical fact, the impact of Brady could be much larger than it might otherwise have been. Specifically, Part III will argue that Brady could function as a sleeping giant : a case that may not have an immediate impact but could have a devastating effect on labor unions if followed in a different context. Given the original understanding of the Norris-LaGuardia Act, to be discussed prior to this Part, this Note asserts that the Brady court did violence not only to the past history of jurisdiction-stripping cases, but also to the future application of what was originally a pro-labor statute. Part IV then sketches the course of action that the federal courts could take to minimize the damage done by Brady, while stepping on the toes of the Eighth Circuit as little as possible. This solution draws on Judge Bye s dissent but goes beyond it in addressing the potential future impact of Brady across the entire labor law spectrum. Part V will provide a brief conclusion, summarizing Parts II, III, and IV and noting further developments that could affect the balance analyzed in this Note. I BACKGROUND This section proceeds as follows: I begin with a procedural history of the 2011 NFL lockout, beginning in March 2011 and ending with the Brady decision in July. This should provide sufficient background for the reader to understand the factual context of the Brady decision as it related to the parties at hand. Subpart B goes on to give a brief history of the Norris-LaGuardia Act to explain the legal context surrounding the decision. A. The 2011 NFL Lockout: Procedural History Brady v. NFL 13 culminated the legal portion of a 2011 dispute between the National Football League (NFL) and the National Football League Players Association (NFLPA). This dispute primarily centered on the terms of the ensuing collective bargaining agreement (CBA) 12 Greenhouse, supra note 7, at B2; see Robert Combs, Labor Stats and Facts: A Record Year for Lockouts, BLOOMBERG BNA LAB. & EMP. BLOG (Jan. 25, 2012), http://www.bna. com/labor-stats-facts-b12884907454. 13 644 F.3d 661 (8th Cir. 2011). For some historical background on NFL labor strife, see ROBERT BERRY ET AL., LABOR RELATIONS IN PROFESSIONAL SPORTS 97 98 (1986).

956 CORNELL LAW REVIEW [Vol. 99:953 between the two sides. 14 The previous CBA had expired on March 11, 2011, and the NFL had initiated a lockout of its players the next day. 15 Players received no compensation during the lockout and could not make use of team facilities. 16 On April 25, Judge Susan Nelson of the U.S. District Court for the District of Minnesota granted the players motion for a preliminary injunction of the lockout. 17 Relying on the NFLPA s strategic decision to disclaim its status as a labor union immediately before filing suit, Judge Nelson held that the case before her did not arise out of a labor dispute and that the Norris-LaGuardia Act therefore did not apply. 18 The league quickly appealed, and the Eighth Circuit, over dissent, first granted a stay of the injunction pending the appeal. 19 Approximately two months later, a 2 1 majority formally vacated Judge Nelson s order and filed a lengthy opinion holding that, under the Norris-LaGuardia Act, the district court had lacked jurisdiction to enjoin the lockout. 20 14 NFL players, like other professional athletes, are in the unique position of being bound by a CBA but still having the freedom to negotiate their own individual contracts. See Ryan T. Dryer, Beyond the Box Score: A Look at Collective Bargaining Agreements in Professional Sports and Their Effect on Competition, 2008 J. DISP. RESOL. 267, 267. For an exposition of the general incongruity of individual contracts with collective bargaining agreements, see J.I. Case Co. v. NLRB, 321 U.S. 332, 335 37 (1944). 15 Elliot T. Dube, District Court Lacked Jurisdiction to Enjoin NFL Lockout, Eighth Circuit Says in 2-1 Split, BLOOMBERG BNA DAILY LAB. REP. (July 8, 2011), http://news.bna.com/ dlln/display/batch_print_display.adp?searchid=18350351. 16 Id. 17 Brady v. NFL, 779 F. Supp. 2d 992, 1042 43 (D. Minn.), vacated, 644 F.3d 661 (8th Cir. 2011). 18 Id. at 1026 27. Disclaiming the NFLPA s status as a union was the first step in a process called decertification. In beginning the decertification process, the NFLPA hoped to take its impending lawsuit out of the realm of labor law and into the realm of antitrust law. Due to the nonstatutory labor exemption, the NFL is not subject to antitrust law if and only if it is engaged in or operating under the product of successful collective bargaining. See Mackey v. NFL, 543 F.2d 606, 623 (8th Cir. 1976); abrogated in part by Brown v. Pro Football, Inc., 518 U.S. 231 (1996), as recognized in Eller v. NFL Players Ass n, 731 F.3d 752, 755 (8th Cir. 2013). The decertification strategy was not new, see Sean W.L. Alford, Dusting Off the AK-47: An Examination of NFL Players Most Powerful Weapon in an Antitrust Lawsuit Against the NFL, 88 N.C. L. REV. 212, 224 26 (2009). The interplay between labor law and antitrust law has given rise to much of the legal scholarship analyzing the 2011 lockout. See, e.g., Gabriel Feldman, Antitrust Versus Labor Law in Professional Sports: Balancing the Scales After Brady v. NFL and Anthony v. NBA, 45 U.C. DAVIS L. REV. 1221, 1249 51 (2012). Note also that, as a result of the decertification strategy, the actual plaintiffs in Brady v. NFL were individual players, not the NFLPA. For the sake of convenience, however, I will sometimes refer to the plaintiff in the litigation as the NFLPA. 19 Brady v. NFL, 640 F.3d 785, 794 (8th Cir. 2011). 20 See Brady, 644 F.3d at 680 81 (8th Cir. 2011).

2014] LOCKED OUT WITHOUT A KEY 957 B. The Norris-LaGuardia Act The Norris-LaGuardia Act of 1932 21 greatly restricts the jurisdiction of federal courts to issue injunctions in any case involving or growing out of a labor dispute. 22 Section 7 of the Act dictates specific procedures that a court must follow, and facts that it must find, before issuing any injunction in a case involving a labor dispute. 23 Section 4 of the Act goes even further, imposing an absolute ban on enjoining nine specific types of labor-related activity. 24 That is, no facts or procedural safeguards can negate the jurisdictional ban on injunctions of these nine protected activities. 25 The first of these activities, codified in section 4(a) of the Act, is [c]easing or refusing to perform any work or to remain in any relation of employment. 26 Courts have long interpreted this language to cover employee- or union-initiated strikes, and have accordingly refused to enjoin this type of work stoppage. 27 The Brady court, however, faced a less common situation: that of the employer-initiated lockout. 28 Whether section 4(a) applied to protect lockouts, as opposed to just strikes, from the force of injunctions presented a question without an immediately clear answer. Judge Nelson of the district court had enjoined the NFL lockout on the ground that the Brady case did not involve or grow out of a labor dispute at all and in so doing had avoided the need to put forth a construction of section 4(a). 29 And in fact, the Brady court had some opportunity to avoid the section 4(a) question as well, as it also held that the district court had not successfully conformed to the procedural requirements of section 7 and that its injunction was improper on 21 29 U.S.C. 101 115 (2012). 22 29 U.S.C. 101. 23 29 U.S.C. 107 (2012). These hurdles are not easy to clear: section 7(a) requires, inter alia, that the court find that unlawful acts... will be committed unless restrained. Id. 107(a). 24 29 U.S.C. 104 (2012). 25 See id. 26 Id. 27 See, e.g., United States v. Hutcheson, 312 U.S. 219, 234 35 (1941). 28 The Developing Labor Law defines a lockout as the withholding of employment by an employer from its employees for the purpose of either resisting their demands or gaining a concession from them. DEVELOPING LABOR LAW, supra note 6, at 1733 34. 29 The district court s holding was based on the NFLPA s decertification as the bargaining representative of the players, a process which the union had strategically initiated just before the start of the lockout. See Brady v. NFL, 779 F. Supp. 2d 992, 1022 (D. Minn.), vacated, 644 F.3d 661 (8th Cir. 2011). The players argued, successfully in the district court, that the case did not properly involve a labor dispute since they no longer enjoyed any union representation. The Eighth Circuit disagreed, holding that since the two sides maintained ongoing disagreement pertaining to terms and conditions of employment, the case did arise out of a labor dispute and therefore was subject to the restrictions of the Norris-LaGuardia Act. See Brady, 644 F.3d at 672 73.

958 CORNELL LAW REVIEW [Vol. 99:953 that ground as well. 30 But in order to hold that the lockout merited complete protection from injunction, thereby insulating the NFL from any attempted cure of the procedural defects by the court below, the Brady court had no choice but to grapple with the language and history of section 4(a). It was in this portion of the analysis where the majority opinion of Circuit Judge Steven Colloton (joined by Circuit Judge Duane Benton) and the dissenting opinion of Circuit Judge Kermit Bye most sharply differed. II THE BRADY DECISION Part II will first set out the position of the Brady majority in further detail, so as to establish a basis for criticism. Next, subpart B of Part II will engage in a critical review of the majority opinion, ultimately concluding that it did not comport with either precedent or the original legislative purposes (as demonstrated by legislative history) of the Norris-LaGuardia Act. A. The Opinion The majority, through an opinion authored by Circuit Judge Colloton, engaged in a highly textual analysis of section 4(a). The court first pointed out that the introductory clause to section 4 proscribes any injunction that would prohibit any person or persons participating or interested in a labor dispute from engaging in the protected activity set forth within section 4. 31 Employers, asserted the court, clearly are persons participating in a labor dispute. 32 The court then moved on to 4(a) itself, setting its focus on the second half of the subsection: [o]r to remain in any relation of employment. 33 Again leveraging the expansive meaning of the word any, the court concluded that a lockout amounts to an employer s refusal to remain in a particular relation of employment to its employees. 34 To provide additional support for its broad reading of this language of the Act, the court cited to Ali v. Federal Bureau of Prisons, 35 a 2008 Supreme Court case in which the Court directly stated that the word any, read naturally, has an expansive meaning. 36 The Brady court further pointed out that the first half of 4(a) [c]easing or refusing to perform any work has already received a similarly 30 Brady, 644 F.3d at 681. 31 Id. at 675. 32 Id. 33 Id. at 674. 34 Id. at 676. 35 552 U.S. 214 (2008). 36 Id. at 219 (quoting United States v. Gonzales, 520 U.S. 1, 5 (1997)).

2014] LOCKED OUT WITHOUT A KEY 959 expansive reading in the Supreme Court, such that injunctions are forbidden even when employees refuse to perform a certain type of work, as opposed to all work. 37 The Brady court thus contended that if any is to be read broadly in the first half of 4(a), it ought to be read just as broadly in the second half of 4(a). 38 On this basis, the majority held that section 4(a) stripped federal courts, including the U.S. District Court for the District of Minnesota, from enjoining employer-initiated lockouts. 39 The dissenter was Judge Bye, who argued that neither judicial precedent nor the legislative history of the Norris-LaGuardia Act supported the majority s decision. 40 Judge Bye concluded that the Norris-LaGuardia Act does not and should not operate to strip federal courts of the jurisdiction to issue injunctions against employer action. 41 This Note now proceeds to agree with Judge Bye and attempts to augment his cogent analysis with a closer examination of the judicial opinions, legislative documents, and scholarly articles that have construed the Norris-LaGuardia Act since its enactment in 1932. B. Brady Did Not Comport with Precedent or Legislative History The essential holding of Brady is that the Norris-LaGuardia Act strips federal courts of the jurisdiction to enjoin employer-initiated lockouts. 42 In so holding, the Brady majority construed a statute, enacted to protect labor, in a way that instead protected management from losing a powerful negotiating weapon. 43 This Note contends not only that the Brady court erred in straying from the original purpose 37 Brady, 644 F.3d at 676 (citing Jacksonville Bulk Terminals, Inc. v. International Longshoremen s Association, 457 U.S. 702, 704 05 (1982)). In Jacksonville Bulk Terminals, a longshoremen s union refused, for political reasons, to load goods on ships bound for the Soviet Union. 457 U.S. at 704 05. The Court held that the Norris-LaGuardia Act s prohibition on injunctions should be read to apply to this type of work stoppage. Id. at 723 24. 38 Brady, 644 F.3d at 676. 39 Id. at 680 81. 40 Id. at 688 90 (Bye, J., dissenting). 41 Id. Judge Bye dissented on other grounds as well, most notably that he felt the case did not involv[e] or grow[ ] out of a labor dispute as would be required for the Norris-LaGuardia Act to apply at all. See 29 U.S.C. 101 (2012); Brady, 644 F.3d at 868 (Bye, J., dissenting). On this point, Judge Bye was agreeing with Judge Nelson of the district court; both relied on the fact that the NFL Players Union had decertified before filing suit in finding that the Brady case did not arise out of a labor dispute. See Brady, 644 F.3d at 686 (Bye, J., dissenting); Brady v. NFL, 779 F. Supp. 2d 992, 1026 27 (D. Minn.), rev d, 644 F.3d 661 (8th Cir. 2011). That is, both Judge Bye and Judge Nelson felt that because there was no active labor union involved in the case, the case did not arise out of a labor dispute. For a deeper analysis of this aspect of the case, see Feldman, supra note 18, at 1249 51. 42 See Brady, 644 F.3d at 680 81. 43 See Greenhouse, supra note 7, at B2 ( [C]ompanies see lockouts as a way to wrest concessions and set an example for workers at their other facilities. ).

960 CORNELL LAW REVIEW [Vol. 99:953 of the Norris-LaGuardia Act but also that it acted in contravention of the weight of judicial authority. In supporting this two-pronged contention, this subpart will proceed chronologically, beginning with a more detailed exposition of the original purpose of the Norris- LaGuardia Act and then moving on to examine relevant case law. 1. Legislative History Congress enacted the Norris-LaGuardia Act in 1932 as a response to the demonstrated power of judicial injunctions against employee-initiated strikes. 44 One source affirms that the labor injunction was so powerful and widespread in the 1920s that courts in a sense assist[ed] firms to compel a nonunion shop throughout an industry. 45 Commentators at the time encouraged Congress to pass legislation that would restrict the jurisdictional authority of the federal courts to issue these injunctions and thereby improve the balance of power between labor and management. 46 The legislature obliged with the Norris-LaGuardia Act and did not hide its intent behind the Act. The House of Representatives stated, in a House Report, that [t]he purpose of the bill is to protect the rights of labor in the same manner the Congress intended when it 44 See MICHAEL C. HARPER & SAMUEL ESTREICHER, LABOR LAW: CASES, MATERIALS, AND PROBLEMS 66 68 (7th ed. 2011). The Clayton Act, 29 U.S.C. 52 (2012), had actually been passed in 1914 in part to accomplish the same purpose, but it had been given a very narrow interpretation, and essentially neutered, by federal court judges. See United States v. Hutcheson, 312 U.S. 219, 230 (1941) (explaining that judges took the Clayton Act as only applying to trade union activities directed against an employer by his own employees ). The relevant language of the Clayton Act reads as follows: No restraining order or injunction shall be granted by any court of the United States, or a judge or the judges thereof, in any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving, or growing out of, a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property, or to a property right.... 29 U.S.C. 52 (2012). 45 HARPER & ESTREICHER, supra note 44, at 67; see, e.g., United Mine Workers v. Red Jacket Consol. Coal & Coke Co., 18 F.2d 839 (4th Cir. 1927). 46 See, e.g., Felix Frankfurter & Nathan Greene, Labor Injunctions and Federal Legislation, 42 HARV. L. REV. 766, 776 77 (1929). Frankfurter (prior to his time as a Supreme Court Justice) and Greene were among the drafters of the Norris-LaGuardia Act and were quite prolific in publishing about the need for it during this time period. The just-cited article was one of two on the same subject that the pair published in top law journals within two months. See Felix Frankfurter & Nathan Greene, Legislation Affecting Labor Injunctions, 38 YALE L.J. 879 (1929). A year later, Frankfurter and Greene published an entire book on the subject. FELIX FRANKFURTER & NATHAN GREENE, THE LABOR INJUNCTION (1930) [hereinafter THE LABOR INJUNCTION]. See infra notes 56 60 and accompanying text for more on this book.

2014] LOCKED OUT WITHOUT A KEY 961 enacted the Clayton Act. 47 The Clayton Act, enacted in 1914, had also contained a provision which seemed to restrict the jurisdiction of the federal courts to enjoin strikes, but that provision had proved ineffectual as a result of its narrow construction and application by the [f]ederal courts. 48 Given that the 72nd Congress specifically stated that the purpose of the Norris-LaGuardia Act was to mirror what Congress intended when it enacted the Clayton Act, this analysis could benefit from any evidence of the intent of the 63rd Congress that enacted the Clayton Act. 49 Some evidence of that kind comes from an earlier House Report stating: The consensus of judicial view... is that workingmen may lawfully combine to further their material interests without limit or constraint, and may for that purpose adopt any means or methods which are lawful. It is the enjoyment and exercise of that right and none other that this bill forbids the courts to interfere with. 50 By connecting these dots, we already have a strong argument that the Norris-LaGuardia Act restricts federal jurisdiction only with respect to strikes and not employer-initiated lockouts. Simply put, the 72nd Congress stated that the intent of the Norris-LaGuardia Act was to restore the jurisdiction-stripping effect intended by the 63rd Congress in adopting the Clayton Act. 51 And the 63rd Congress stated that the Clayton Act only forbids courts to interfere with the above-described right of workingmen. 52 By explicitly stating that the bill does not forbid the courts from interfering with any other rights (such as those of employers against employees), the 63rd Congress made its intent to protect employees in their efforts to strike quite clear. With that said, it is certainly fair for the naysayer to point out that the above-constructed argument arrives not only after numerous steps but also with only nonstatutory documents supporting its validity. That is, one might reasonably complain that piecing together language from multiple House Reports may not accurately gauge the true intent of the 72nd Congress in enacting the Norris-LaGuardia Act. However, there are at least two more sources that would seem to provide access into the minds of the drafters of the Norris-LaGuardia 47 H.R. REP. NO. 72-669, at 3 (1932) (emphasis added); see also S. REP. NO. 72-163, at 8 9, 16 18 (1932) (expressing a similar sentiment). For more on the Clayton Act, see supra note 44 and infra note 50 and accompanying text. 48 H.R. REP. NO. 72-669, at 3; see also supra note 44 (describing the particular, narrow construction courts applied to the Clayton Act). 49 H.R. REP. NO. 72-669, at 3. 50 H.R. REP. NO. 63-627, at 32 (1914) (emphasis added). 51 See supra note 44 and accompanying text. 52 See supra note 47 and accompanying text.

962 CORNELL LAW REVIEW [Vol. 99:953 Act, and both seem to indicate the same conclusion as reached in the previous paragraph. One of these sources is a work briefly mentioned in a footnote above: Felix Frankfurter and Nathan Greene s book, The Labor Injunction. 53 Frankfurter, before President Franklin Roosevelt nominated him to the Supreme Court bench, 54 served as one of the drafters of the Norris-LaGuardia Act. 55 Thus, this work, published in 1930, provides insight into the goals of an author of the Act at a time very close to when the Act was enacted. A quote listed in the book described the Clayton Act as the charter of liberty of labor. 56 The book also asserted that the Norris-LaGuardia Act (as yet unnamed at the time of the book) should and would attempt to fill the gaps created by judicial misconstruction of the Clayton Act. 57 Frankfurter and Greene also made economic arguments in favor of passing the future Norris-LaGuardia Act. 58 It is not central to this Note to detail these arguments, but it is notable that the thrust of these arguments was that Congress should protect labor s right to organize as a means to improve the balance of power in labor disputes. 59 Examining The Labor Injunction, as well as some of Frankfurter and Greene s other publications on this subject, leads unavoidably to the conclusion that at least two drafters of the Norris-LaGuardia Act sought to protect labor. 60 Yet there is still stronger evidence of the purpose of the Norris-LaGuardia Act: the text of the Act itself. Specifically, section 2 of the Act, which purports to set out the Act s underlying public policy, strongly supports the interpretation that Congress was concerned exclusively with the rights of labor. 61 This section states that the Act was enacted in response to the right of workers to be free from the interference, restraint, or coercion of employers of labor when engaging in concerted activities for the purpose of collective bargaining 53 THE LABOR INJUNCTION, supra note 46. 54 John Simkin, Felix Frankfurter, SPARTACUS EDUC., http://www.spartacus.schoolnet. co.uk/usafrankfurter.htm (last visited Feb. 24, 2014). 55 As did Greene. See Matthew C. Lawry, Comment, Jacksonville Bulk Terminals: The Norris-LaGuardia Act and Politically Motivated Strikes, 44 OHIO ST. L.J. 821, 825 (1983). 56 THE LABOR INJUNCTION, supra note 46, at 164. 57 Id. at 215 20. 58 See id. at 205. 59 See Clyde W. Summers, Frankfurter, Labor Law and the Judge s Function, 67 YALE L.J. 266, 267 (1957) (providing a more complete summary of Frankfurter s economic views and confirming that his aim was to strengthen labor). 60 See also supra note 46 and accompanying text (describing the Norris-LaGuardia Act s drafters stated motivation to protect labor). The Supreme Court has noted that the drafter of legislation is an unusually persuasive source as to the meaning of the relevant statutory language. Carcieri v. Salazar, 555 U.S. 379, 390 n.5 (2009). 61 See 29 U.S.C. 102 (2012).

2014] LOCKED OUT WITHOUT A KEY 963 or other mutual aid or protection. 62 The section says nothing of the rights of management. Further, section 2 specifically states that the Act intends to protect employees from interference... or coercion by employers. 63 Thus, one need not stop at the conclusion that section 2 does not provide for the protection of management activities; indeed, the public policy set out in the section could easily be read as disfavoring lockouts. After all, are lockouts not an example of employer interference with, or coercion of, employee activities? This consideration counsels against interpreting any portion of the Norris-LaGuardia Act as protecting employers. It seems more plausible, based on this passage at least, to think of the Act as being anti-employer. One need not go this far to disagree with the interpretation favored by the Brady majority, but at the very least section 2 would seem to establish a strong presumption that employer activity is not directly protected under the Norris-LaGuardia Act. The only argument put forth by the Brady majority as to the construal of section 2 comes from a Supreme Court case that supposedly established a different interpretation of the overall policy of the Act. 64 That case, Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad, included a line stating that Congress, in enacting the Act, sought to prevent the injunctions of the federal courts from upsetting the natural interplay of the competing economic forces of labor and capital. 65 First of all, it is worth noting that the Brady majority apparently felt incapable of directly citing the words of section 2 to fit its view. Instead, the majority was forced to rely on a general statement about the underlying goals of the Act which came in a separate case, twenty-five years after the Act was enacted. 66 More importantly, the Brady court at best puts its own spin on, and at worst skews, the meaning of the quote from the Brotherhood of Railroad Trainmen opinion. In the same paragraph as the quoted section, Chief Justice Earl Warren wrote for the Court, The Norris-LaGuardia Act... was designed primarily to protect working men in the exercise of organized, economic power, which is vital to collective bargaining. 67 These two quoted sentences appear in conjunction with each other in the paragraph; and on a plain reading they appear to be in harmony with one another. Yet the Brady majority refers to the Brotherhood of Railroad Trainmen passage this way: The Supreme Court has observed that 62 Id. 63 Id. 64 See Brady v. NFL, 644 F.3d 661, 678 (8th Cir. 2011). 65 353 U.S. 30, 40 (1957). 66 See Brady, 644 F.3d at 678. 67 Brotherhood of Railroad Trainmen, 353 U.S. at 40.

964 CORNELL LAW REVIEW [Vol. 99:953 while the Act was designed to protect workingmen, the broader purpose was to prevent the injunctions of the federal courts from upsetting the natural interplay of the competing economic forces of labor and capital. 68 The term broader purpose gives the impression that this second, broader goal supersedes the first, narrower goal as the legislature s underlying intention in enacting the Norris-LaGuardia Act. And indeed, this is exactly the Brady majority s conclusion. 69 But nowhere within the Brotherhood of Railroad Trainmen passage appears any term like or equivalent to broader purpose. This reading of the passage is far from natural or intuitive. With no further justification provided for this interpretation, the Brady majority s rebuttal to the plain language argument of section 2 falls flat. The above review of legislative history and drafter commentary, plus policy language within the Norris-LaGuardia Act itself, should make clear that the Brady majority s construal of the Act (stripping federal judges of the power to enjoin lockouts) is at minimum not fully consistent with the original aims of the Act. With that said, it is possible that the understanding of a particular statute could change over time. Perhaps the Brady majority was guided not by its own peculiar reasoning but by the more modern understanding of a statute enacted almost eighty years prior to the decision. To explore this possibility, we now examine the relevant case law, continuing our chronological path from the time of the Act s enactment toward the present day. 2. Cases Interpreting Relevant Portions of the Norris-LaGuardia Act Early cases involving the Norris-LaGuardia Act affirmed that the primary purpose of the Act was to provide extra protection for labor against the power of the judicial injunction. 70 These early courts also confirmed the tight relationship between the Norris-LaGuardia Act and the earlier Clayton Act, and they specifically confirmed the understanding that the Norris-LaGuardia Act had been enacted, at least in part, to fill in unforeseen gaps within the Clayton Act. 71 These 68 Brady, 644 F.3d at 678 (emphasis omitted) (quoting Brotherhood of Railroad Trainmen, 353 U.S. at 40). The Brady majority also italicizes the last thirteen words of the quote (starting with upsetting ). The original source contains no italics. 69 See Brady, 644 F.3d at 678, 680 81 (emphasizing the natural interplay of the competing economic forces mentioned in Brotherhood of Railroad Trainmen and concluding that [a]n employer s lockout is part of this interplay ). 70 See, e.g., United States v. Hutcheson, 312 U.S. 219, 235 36 (1941) ( The underlying aim of the Norris-LaGuardia Act was to restore the broad purpose which Congress thought it had formulated in the Clayton Act but which was frustrated, so Congress believed, by unduly restrictive judicial construction. ). 71 See Milk Wagon Drivers Union, Local No. 753 v. Lake Valley Farm Prods., Inc., 311 U.S. 91, 102 (1940) (quoting language from the House Judiciary Committee to support the

2014] LOCKED OUT WITHOUT A KEY 965 judicial opinions align perfectly with the House Reports, 72 drafter commentary, 73 and statutory text 74 examined above. However, while the above paints a compelling picture of the overall purposes of the Norris-LaGuardia Act, it does not directly address the particular interpretive question facing the Brady court. As detailed above, 75 the Brady court was tasked by the facts of the case with a close analysis of section 4(a) of the Norris-LaGuardia Act, which reads: No court of the United States shall have jurisdiction to issue any... injunction in any case involving or growing out of any labor dispute to prohibit any person... from... [c]easing or refusing to perform any work or to remain in any relation of employment. 76 As also explained above, 77 the Brady majority interpreted this language as applying to both strikes and employer-initiated lockouts. 78 Considering only the plain language of the quoted text, this reading is admittedly plausible. After all, a lockout presumably qualifies as any labor dispute, and locking out employees could reasonably be interpreted as refusing... to remain in any relation of employment. 79 Instead, the earlier portion of this Part demonstrated that the Brady majority s interpretation, while potentially plausible with no other context, does not comport with the legislative goals of the Norris-LaGuardia Act, as evidenced by multiple sources, including early case law. 80 But another useful piece of the puzzle in assessing the majority s interpretation of section 4(a) would be any prior interpretations of that particular section by courts of comparable or greater authority. This section now proceeds to examine three such cases in detail, and one other in brief. In Brotherhood of Locomotive Engineers v. Baltimore & Ohio Railroad, a group of railway labor organizations sued to invalidate a new work rule that railway carriers had recently imposed on their workers. 81 The labor organizations managed to secure an injunction against the enforcement of the rule from the U.S. District Court for the Northern proposition that Congress fashioned the Norris-LaGuardia Act primarily to strengthen labor in the same way that the drafters of the Clayton Act intended). 72 See H.R. REP. NO. 72-669, at 3 (1932); S. REP. NO. 72-163, at 8 9, 16 18 (1932); H.R. REP. NO. 63-627, at 32 (1914); supra notes 47 50 and accompanying text. 73 See supra note 46; see also supra notes 55 60 and accompanying text (describing the drafters motivation to protect labor). 74 See supra notes 61 63 and accompanying text. 75 See supra notes 28 30 and accompanying text. 76 29 U.S.C. 104(a) (2012). The full text of the statute restricts courts from issuing restraining orders and temporary or permanent injunctions. 77 See supra Part II.A. 78 Brady v. NFL, 644 F.3d 661, 680 81 (8th Cir. 2011). 79 29 U.S.C. 104(a). 80 See, e.g., United States v. Hutcheson, 312 U.S. 219, 235 36 (1941); Milk Wagon Drivers Union, Local No. 753 v. Lake Valley Farm Prods., Inc., 311 U.S. 91, 102 (1940). 81 310 F.2d 513, 514 15 (7th Cir. 1962).

966 CORNELL LAW REVIEW [Vol. 99:953 District of Illinois. 82 On appeal, the railway carriers argued that section 4(a) should have barred the district court from issuing the injunction, since the underlying controversy between the carriers and labor organizations was a labor dispute. 83 The Seventh Circuit disagreed, holding that the Norris-LaGuardia Act contemplated a nonreciprocal policy and thus did not prevent federal courts from issuing injunctions against management. 84 The court did not mince words in concluding: [O]ur study of th[e] history and the language of the Act... convinces us that the purpose of Congress in this respect was to protect only employees and unions. 85 Eight years after the Seventh Circuit decided Brotherhood of Locomotive Engineers, the First Circuit found itself forced to unpack section 4(a) in de Arroyo v. Sindicato de Trabajadores Packinghouse. 86 De Arroyo centered on seven employees quest to be reinstated and allowed to return to work for their former employer, Puerto Rico Telephone Company. 87 The company argued that section 4(a) should be interpreted as barring a federal court from enjoining its refusal to rehire the plaintiffs. 88 Thus, while the context was different from both the prior case of Brotherhood of Locomotive Engineers and the future Brady case, the underlying issue was similar: the First Circuit was forced to decide whether section 4(a) bans injunctions of employer activity as well as of employee activity. 89 In line with, and indeed citing, Brotherhood of Locomotive Engineers, the de Arroyo court concluded that section 4(a) did not ban such injunctions. 90 The court stated directly: Our understanding of the legislative history behind section 4(a) leads us to conclude that that section was not intended as a protection for employers. 91 Thus, while the de Arroyo case, like Brotherhood of Locomotive Engineers, did not involve a lockout, the court s explanation of its reasoning logically covers lockout situations, as refusing to enjoin a lockout on statutory grounds would be concluding that section 4(a) of the Norris-LaGuardia Act does function as a protection for employers. 82 See id. 83 See id. at 516. 84 Id. at 518. 85 Id. (emphasis added). 86 425 F.2d 281 (1st Cir. 1970). 87 Id. at 283. 88 See id. at 290 91. The company urged the court to read [section 4(a)] as prohibiting a federal court from enjoining an employer from refusing to reemploy a former employee, even an improperly discharged one. See id. at 290 n.12. 89 See id. at 290 91 (concluding that the company s literal interpretation of the Act disregarded its purpose to protect working men in the exercise of organized, economic power ). 90 See id. at 291. 91 Id.

2014] LOCKED OUT WITHOUT A KEY 967 The Ninth Circuit weighed in on the issue eleven years later in Local 2750, Lumber & Sawmill Workers Union v. Cole, a case similar to de Arroyo in that it also involved a potential worker reinstatement. 92 After discussing de Arroyo at length, Chief Judge James Browning came to the same conclusion: the Norris-LaGuardia Act does not operate as a bar to judicial injunctions against management, at least in the reinstatement context. 93 And like the court in de Arroyo, Chief Judge Browning spoke in terms that, on a natural reading at least, would apply to all potential injunctions against management. After reviewing case law and the legislative history, Chief Judge Browning stated succinctly: Section 4(a) was intended to protect the right of workers and labor unions to strike.... 94 He also agreed with the court in de Arroyo that the remains in any relation of employment language of section 4(a) does not refer to any right of an employer not to continue the employment relationship. 95 The interpretation directly rejected by de Arroyo and Lumber & Sawmill Workers Union is essential to the NFL s argument in Brady: it is the remain in any relation of employment portion of section 4(a) that could potentially be read as covering lockouts. 96 Thus, Lumber & Sawmill Workers Union, despite centering on a claim for reinstatement as opposed to a work stoppage, directly contradicts the majority s position in Brady. 97 Finally, it is worth noting that at least one previous Eighth Circuit 98 case indirectly supports Brotherhood of Locomotive Engineers, de Arroyo, and Lumber & Sawmill Workers Union. In Tatum v. Frisco Transportation Co., 99 the U.S. District Court for the Western District of Missouri had previously ordered Frisco Transportation Company to reinstate a former employee after finding that Frisco had violated its collective bargaining agreement. 100 On appeal, the company 92 Local 2750, Lumber & Sawmill Workers Union v. Cole, 663 F.2d 983, 984 (9th Cir. 1981). 93 See id. at 986 87 ( Measured against the broader purpose of the Act, reinstatement orders were not among the injunction devices employed [by the employer] to weaken labor and defeat its efforts to organize and bargain collectively.... ). 94 Id. at 986. 95 Id. (quoting 29 U.S.C. 104(a) (2012)). 96 See 29 U.S.C. 104(a). 97 See also Allison Stoddart, Comment, A Stronger Defensive Line: Extending NFL Owners Antitrust Immunity Through the Norris-LaGuardia Act in Brady v. NFL, 53 B.C. L. REV. E. SUPP. 123, 132 (2012), http://lawdigitalcommons.bc.edu/bclr/vol53/iss6/11 (giving the same take on Lumber & Sawmill Workers Union). 98 Brady took place in the Eighth Circuit, with suit originating in the District of Minnesota. See Dube, supra note 15. 99 626 F.2d 55 (8th Cir. 1980). 100 Id. at 57. The plaintiff in Tatum actually sued both his employer and his union (for violation of the duty of fair representation) and won a judgment against both. Id.

968 CORNELL LAW REVIEW [Vol. 99:953 challenged the authority of the district court to order equitable relief such as reinstatement. 101 The Eighth Circuit, per Circuit Judge J. Smith Henley, not only rejected this claim but also specifically cited to de Arroyo. 102 Moreover, the portion of de Arroyo to which Judge Henley cited (a three-page section) 103 is the exact portion which contains that court s assertion that the primary purpose behind the anti-injunction provisions [is] to protect working men in the exercise of organized, economic power. 104 That same portion also contains de Arroyo s conclusion that section 4(a) was not intended as a protection for employers. 105 Further, a close reading of the three cited pages of de Arroyo reveals no plausible alternate explanation as to which portion of the three pages Tatum intended to cite. 106 While it may not be fair, based solely on the above considerations, to definitively conclude that the Tatum court necessarily agreed with all of de Arroyo s reasoning, Tatum s citation to this particular portion of the de Arroyo opinion is strong evidence that the court would not have held section 4(a) applicable to injunctions against employers if forced to rule on this exact point. If this conclusion is fair, then the Brady court not only contravened the holdings of three of its fellow circuit courts but also defied the spirit of a prior case within its own circuit. Regardless of how much weight should be assigned to the Tatum portion of the analysis, the above review of Brotherhood of Locomotive 101 Id. at 60. The opinion does not indicate that Frisco directly relied on the Norris-LaGuardia Act in advancing this contention. See id. 102 Id. 103 De Arroyo v. Sindicato de Trabajadores Packinghouse, 425 F.2d 281, 290 92 (1st Cir. 1970). 104 Id. at 291 (quoting Brotherhood of Railroad Trainmen v. Chi. River & Ind. R.R., 353 U.S. 30, 40 (1957)). 105 Id. 106 Page 290 of the de Arroyo opinion is primarily about a separate (though related) issue from the reinstatement issue which concerned Tatum: that of prejudgment interest. Id. at 290. Near the end of that page, however, the court did state that other courts have ordered reinstatement and that it supports the power of the district court of Puerto Rico (the relevant lower court in de Arroyo) to reinstate the seven phone company employees. Id. The court also expressly stated, near the end of page 290, that the Norris-LaGuardia Act should not act as a bar to this reinstatement. See id. Page 291 contains the passages quoted in the text accompanying footnotes 104 and 105, strongly supporting the view that section 4(a) does not operate as a bar on injunctions against employer activity. Id. at 291. The rest of page 291, together with page 292, goes on to explain why reinstatement may or may not be an appropriate remedy (beyond simply not being barred by the Norris- LaGuardia Act). See id. at 291 92. In short, if Tatum had not intended to cite to the portion of the de Arroyo opinion that discussed the Norris-LaGuardia Act, then it had no need to include page 290 in its citation. Including this page, rather than citing only to pages 291 and 292, admittedly may not be sufficient proof that the Tatum court supported the reading of section 4(a) later rejected by Brady. However, it is, at the very least, much stronger evidence for that position than for the opposing claim.

2014] LOCKED OUT WITHOUT A KEY 969 Engineers, de Arroyo, and Lumber & Sawmill Workers Union strongly indicates that the weight of past authority rested on the side of dissenting Judge Bye in Brady. 107 This review of precedent, especially when combined with the legislative history and stated policy of the Norris- LaGuardia Act, both discussed above, 108 sheds considerable doubt on the validity of the Brady court s conclusions. In fact, the Brady court could be interpreted as having implicitly conceded that point, based on language within its majority opinion. After acknowledging the existence of the de Arroyo and Lumber & Sawmill Workers cases, the court chose not to refute the reasoning of those opinions and instead curtly announced, With due respect to these courts, we think it better to begin the analysis with the text of 4(a). 109 The majority then made the detailed textual argument summarized above. 110 At best, then, the majority declined its opportunity to directly rebut the de Arroyo and Lumber & Sawmill Workers courts. To be fair, Judge Colloton in his Brady opinion had no obligation to honor the holdings of de Arroyo, Lumber & Sawmill Workers, Brotherhood of Locomotive Engineers, or even Tatum. 111 The Brady court was not bound by any decision of the Supreme Court, and so it was free to fashion its own rule in interpreting section 4(a). 112 Further, there does exist a contingent of modern scholars and jurists who advocate for a strict textualist approach in interpreting statutes. 113 For these scholars, legislative history has little, if any, place in construing statutory language. 114 On this view, the majority opinion can be defended: Judge Colloton followed a textualist approach in interpreting section 4(a), largely ignoring legislative history; he disregarded prior 107 See Brady v. NFL, 644 F.3d 661, 682 (8th Cir. 2011) (Bye, J., dissenting). 108 See supra Part II.B.1. 109 Brady, 644 F.3d at 675 (majority opinion). 110 See supra Part II.A. 111 Since the First, Seventh, and Ninth Circuits are all on an equal plane to the Eighth Circuit, the Eighth Circuit need not follow their decisions. See Joseph W. Mead, Stare Decisis in the Inferior Courts of the United States, 12 NEV. L.J. 787, 790 (2012) (explaining that vertical stare decisis only requires a court to follow the prior decisions of a court that could reverse its decision). The prior position taken by Tatum, besides almost certainly qualifying as dicta, came from the same court and so the same principle leaves a modern iteration of the Eighth Circuit free to disregard that prior position. See id. However, the doctrine of law of the circuit does require that a federal court of appeals use the en banc procedure to overturn one of its past decisions. See id. at 798 99. 112 See id. at 790. 113 See, e.g., William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 623 25 (1990) (describing the new textualism movement and championing Justice Antonin Scalia as its spearhead). 114 See id. at 623 24 ( The new textualism posits that once the Court has ascertained a statute s plain meaning, consideration of legislative history becomes irrelevant. Legislative history should not even be consulted to confirm the apparent meaning of a statutory text. ).